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Analysis Of New OTT Platform Regulation

Indian Government has turned no stone unturned to resort to vigilantism against social media, news reporting agency and now the newly loved OTT platforms, the main source of entertainment for the local populace during the frequent mundane lockdowns. Anyone who is even a little aware of the socio-political milieu of India would particularly agree the move to censor the OTT platforms was not a piece of news that might shock you to the core.

Rather it was particularly expected by everyone to be introduced quite earlier. Their increasing influence meant that sooner or later they will come under the scanner. The Guidelines particularly lay down rules and tests for the big national and international production houses to re-evaluate business policies to work in India.

But first, we have to understand the reason for the increasing dominance of OTT platforms in the entertainment industry which has been historically the prerogative of a few oligarchs such as Yash Raj Production, Dharma Productions etc. In a few years from almost zero to now, dozens of platforms have started streaming movies and shows.

This makes it a very lucrative and growing field of interest from a socio-political aspect. Therefore, in this Article ahead we will find out what makes OTT platforms the next big thing in India and why there was a need felt to regulate it by the Government.

Analysis of Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021
Rising Influence of OTT Platforms
  • Challenging the Consumer Taste
     
    • OTT platforms have made a tremendous dent in the business of private cinema houses and packed up a bumper share in the entertainment sector of India, a niche that has been historically a prerogative of Big Cinema boxes. The tremendous increase in popularity also meant more scrutiny by the hand of the conservative government.

      A part reason for the popularity of OTT platforms in India besides its portability convenience is its ability to provide a platform and audience to the smaller and new production houses with genuine and provoking scripts were given exposure to the vast audience of India. Not only shows produced on the old dreaded scrips were replaced but a new wave of a renaissance in the Indian Entertainment Sector was being witnessed with movies and Serials constantly showcasing the actual problems in the slums and the house of a local Man in India such as:
      1. Casteism
      2. Rising Hindu Nationalism
      3. Corruption in bureaucracy
      4. Discrimination faced by women of upper caste and lower caste alike
      5. Rising prejudices against the minorities in India
      6. Rising economic inequality
    These are only some of the topics that are frequently touched by the production houses on OTT platforms. They have certainly challenged the perceptions of the Indian consumer by playing across screen characters that depict reality of a common man in India in contrast to the watered-down story of the movie industry.
     
  • Competitive Prices
    Since OTT platform is Pay to Play, the audience is still refined to the elitist in India. Some platforms such as Netflix charge as much as 9600/- per year which for a country like India is still an expenditure many can’t afford. This certainly limits the exposure of the OTT based movies and show to a limited sphere but recently to take advantage of the idle populace during the lockdown, many companies reduced their charges and came up with affordable packages starting at 80 Rs. per month, opening the platform to a new target audience.
    During the last year, there has been a tremendous increase of 30 %[1] in audience viewership, which can be pegged at 29 million. From slums to high rise apartments in Bombay, OTT platforms have found their audience discerning the economic inequality.

    Part reason for the rise of OTT cannot be just connected with the increase in quantity and quality but also to the rise of ubiquitous cheap 4G internet and smartphones, inchoated by the emergence of Jio. India has currently one of the cheapest prices per Gigabyte of the Internet across the world[2]. Availability of cheap internet can be said to be the prime reason for the increase in per capita consumption[3] in India which has direct bearing on the increase in total viewership of OTT platforms.
     
  • Lockdown
    March 22nd, 2020 India went into a nationwide lockdown, which meant total restriction on daily life movements as we know. Everyone was directed to work from home from the comfort of their home while wearing pajamas and sipping on cold homemade Dalgona Coffee. In totality, it meant less time spent on traveling, unnecessary trips to different workplaces, less work burden, etc.

    The now surplus time left had to be spent somewhere and the whole world turned towards OTT platforms, the only source of entertainment away from the same rigid walls of your apartments and rooms, a getaway to the far foreign land outside your houses which had almost become a fantasy for a common man after months of rigid lockdowns. Understandably, the long stay at home turned out to be the icing on the cake for the OTT platforms.

    The viewership by leaps and bounds rocketed to all-time high viewership. This also led to a tremendous increase in the number of platforms and as a result making sure that quality did not drop and the both the consumers and the producers won, a result of which Adam Smith would be proud.
     
  • The Third Wheel- Government.
    Ott platforms and the consumers were having the time of their life. 1000’ of movies and series at the behest of your remote while you were scrounging on good cheap food in your comfy clothes - A dream of all the cinephiles who have had to go to theatres and buy ridiculously expensive food. But the THIRD WHEEL, the Government had to put a spoke in our wheel.

    The government notified the Guidelines for Intermediaries and Digital media ethics rule, 2021 after a large outcry by the nationalist against showcasing the different harsh truths of our society, a propaganda as they say to defame the Indian egalitarian culture. These guidelines will force some of the biggest entertainment houses to recalculate their business plans and the policy regarding their publication of movies and series that directly challenge the status quo.

    The rules firstly address new guidelines for internet intermediaries, who are entities that store or transmit data on behalf of other people which in the case of the internet can be social media as well as other platforms.

    These intermediaries are expected to observe ‘due diligence’ which includes the following:
    • Providing the user information about the terms and conditions of usage as well as about all rules and privacy policy.
    • Blocking content within 36 hours after receiving a notice ordering that from either the Court or the government.
    • Retaining registration information of a user for 180 days after cancellation of registration

      While these guidelines apply to all the intermediaries, some additional guidelines also have been issued for significant Social Media Intermediaries (Intermediaries which possess a userbase higher than a specific threshold). These are as following;
      1. Appointing a resident of India as the Chief Compliance Officer, who should ensure to the compliance with IT rules and Acts.
      2. Appointing a resident of India as Nodal Contact Person. This particular entity is required to coordinate and remain in contact with Law enforcement agencies 24x7.
      3. Appointing a resident of India as the Grievance Officer.
      4. Publish a monthly compliance report mentioning the details of the complaints and the actions are taken as a result of the complaint.

        The new rules also provide for a set of ethics that are to be followed by digital media publishers. The norms provided by Journalistic Conduct of Press Council of India and the Programme Code under the Cable Television Regulation Act are to be followed by new and other information providers.

        The OTT platforms are on the other hand required to perform some special forms of regulations such as:
        1. Classify their content into five categories of:
          • U (Unrestricted)
          • U/A 7+ (Unrestricted Public exhibition subject to parental guidance for children below the age of 7)
          • U/A 13+ (Unrestricted Public exhibition subject to parental guidance for children below the age of 13)
          • U/A 16+ (Unrestricted Public exhibition subject to parental guidance for children below the age of 16)
          • An (Adult)
        2. OTT platforms are required to implement required parental locks to restrict the access of maturely classified content from underage consumers.

          Most importantly, the new guidelines provide for Intermediaries to set up Grievance Redressal Mechanism. The appointed GRD the officer should acknowledge the complaint within 24 hours and the complaint should be resolved within 15 days.

          A three-tier Grievance Redressal mechanism will be needed to set up to deal with complaints regarding content:
          • The first tier would be self-regulation by the publishers.
          • The second Tier would be self- regulation by the Self-Regulating bodies of the Publishers.
          • he third tier would be an oversight mechanism by the central government. As part of the oversight the mechanism, the Ministry of Information and Broadcasting will establish an Inter-Departmental Committee to hear grievances not addressed by self-regulating bodies and also oversee adherence to the code of ethics.

The Secretary, Ministry of Information and Broadcasting after being recommended by the authorized officers may pass an interim order to block content in case of emergency situations where ‘no delay is acceptable. The final order over by the blocking of the content will be passed by Inter-Departmental Committee.

Self-Regulation: Boon or Bane?
The Government in the new guidelines has put the onus on the publishers to make sure that the content they publish adheres to the public policy and the ethics laid down by the government. Therefore, the government has given two avenues for the platforms to oversee the content being published and take cognizance of the matter. Companies such as Netflix and Prime who do not even have an office in India will now be required to mend their ways and re-evaluate their working strategy in India.

Previously, there was no law or autonomous body governing digital content. They were certainly given a free hand in deciding what the platforms spoon feed to their audience. Unrestricted growth coupled with incentives meant that the OTT platforms became a very profitable sector and as a result, over a period of two to three years from almost zero now dozens of companies popped up providing ‘content’.

Therefore, it was inevitable that government comes out to regulate this new booming sector in India. With the biggest youth population, many OTT platforms resorted to creating content with nudity, extreme violence, fake narratives, etc to capture the attention of the youth. Regulation will at least help cleanse what is being spoon-fed as content and entertainment by some companies.

Upon analysis, one can identify broadly two objects of government:
  1. Regulate the entry of certain players in this sector by putting the onus on the companies to regulate themselves, a task not every new player may find feasible.
  2. Regulating the content that is being fed to the population at large who have found their convenience in finding the realities of the world by not reading news or facing the truth themselves but from ‘fictions influenced by real-life incidents’.

Regulation is a necessary evil to make sure what is being published is in conformity to what is good for the public. By providing a grievance mechanism and strict adherence to the timeline, platforms will have to show more restraint in whatever they publish.

While the guidelines were necessary there are some inherent loopholes too. While we talk about self-regulation there is an inherent assumption that the companies will adhere to the guidelines strictly. But that’s the problem, if they don’t follow the required steps there is no strict punishment other than a reprimand and admonishment. As perfectly described by the Judge of Supreme Court Bench, Ashok Bhushan[4];

Rules are in the nature of guidelines with no effective regulation from either screening or taking appropriate action against who violate these guidelines.

It succinctly describes the concern of the Supreme court that the guidelines are all teeth but no bite. While self-regulation Is a an efficient method of surveillance but if it is not supplemented by stern punishments and actions it is just a free pass to all the platforms to go about as they wonder.

Conclusion
India with its huge population and other problems has still a long way to go in reforming the structure and controlling digital media platforms without violating the sanctity of the entire entertainment organization. The only way to find a solution is by deliberation between the actors and the consumers and individual choice. A deliberate consensus among the different players can be amicably reached. Regulation has its counterproductive aspects such as the rise in piracy and illicit websites on the internet which would not harm the producers of such movies but also harm the self-interest of the consumer in the long run.

References:
  1. Corporate Author, India’s OTT Market: Witnessing a rise in number of paid subscribers, Indian Brand Equity Foundation, Accessed on April 1 2021. https://www.ibef.org/blogs/india-s-ott-market-witnessing-a-rise-in-number-ofpaidsubscribers#:~:text=The%20Big%20OTT%20Market,Hindi%2C%20on%20the%20OTT%20platforms.
  2. Corporate Author, Worldwide Mobile Data Pricing 2020, Cable.co.uk, Accessed on April 2, 2021. (https://www.cable.co.uk/mobiles/worldwide-data-pricing/#:~:text=Five%20cheapest%20packages%20in%20the,and%20Ukraine%20(%240.46).
  3. Corporate Author, India’s date use rose by 20% in December, The Hindu, Accessed on April 2, 2021, (https://www.thehindu.com/business/indians-data-use-rose-20-in-december/article33814207.ece)
  4. Prabhjote Gill, ’Supreme Court challenges India’s new rules for governing Netflix, Amazon Prime Video and other OTT’s’, Business Insider, Accessed on 3rd April 2021, (https://www.businessinsider.in/policy/news/sc-challenges-new-rules-for-netflix-amazon-prime-video-disney-hotstar-by-indian-government/articleshow/81346798.cms)

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